Plaintiff appeals from an order denying her motion to set aside a dismissal previously entered upon her stipulation. While the trial judge did not expressly say so, it is clear that he refused to restore the matter solely because of his conviction that the statute of limitations had run. An understanding of the delicate policy questions involved requires reference to the procedural facts, which do not appear to be the subject of any real dispute.

It is alleged that on January 8, 1972 Louis Kahn maliciously assaulted plaintiff Corinne Miller. On November 30, 1973, 22 months after the alleged assault and well within any two-year statute of limitation, Miller filed her complaint and a summons issued three days later. This summons was never served on defendant because on December 18, 1973 he died. On January 2, 1974, still within the two-year statute of limitation in any event, plaintiff amended her complaint to assert the surviving complaint against the

estate. Service on the executor for the estate was accomplished on January 23, 1974. Letters testamentary issued on February 21, 1974, and on March 13, 1974, following the filing of a stipulation extending time to answer, the executor answered by way of a general denial and the assertion, among other affirmative defenses, of N.J.S.A. 3A:12-5:

To enable executors or administrators to examine into the condition of the estate and to ascertain the amount and value thereof and the debts to be paid therefrom, no action, except for funeral expenses, shall be brought or maintained against executors or administrators within 6 months after letters testamentary or of administration have been granted, as the case may be, unless by special leave of the court wherein the action is brought; and, if such leave is given, no execution shall issue within the said period of 6 months.

It is now of course obvious as a matter of hindsight that plaintiff should have sought "special leave of the court" under the circumstances. However, in order not to offend the statute or its policy of providing the executor with time to get organized, plaintiff instead consented to dismiss her complaint "without prejudice."

On June 7, 1974 plaintiff filed a motion, returnable July 12, 1974 (but, for reasons which do not appear, not heard until September 13, 1974) seeking to have the dismissal vacated. The judge treated the motion as one complicated by "a serious question as to whether or not, in fact, the statute of limitations did run," and declined to vacate the dismissal. He suggested thereafter that the statute question be tested by the filing of a new complaint and an assertion of the statute of limitations as a defense.

In this determination we believe the judge went wide of the mark in two respects. First, if the motion might have been otherwise decided had the limitations question been resolved in favor of plaintiff, then the limitation questions should have been decided on this motion. There seems little reason to subject plaintiff to the further expense and

trouble of instituting a new action, especially in the circumstances of this case where her prior conduct, though shortsighted and perhaps somewhat careless, was directed toward compliance with the policy of the law rather than in disregard for the law.

But more to the point, we believe the judge was lured into a misconception of that which was before him. He was not really called upon to decide a pure statute of limitation question, with its corollary issue of waiver and with a consciousness of the "equitable nature" of this doctrine of repose. Lopez v. Swyer , 62 N.J. 267, 275 (1973). Rather, he had before him the problem as to whether a voluntary dismissal is subject to being set aside under R. 4:50-1 for any of the reasons given there, there being no question that the stipulation amounted to "a final * * * proceeding," as that phrase is used in the rule. In the event he had answered that inquiry in the affirmative, as we do below, then he had the further question as to whether that should be done in the circumstances of this case. Plaintiff's failure to make specific reference to the rule -- the source of the court's prerogative, if any, in such case -- and defendant's emphasis on the statute of limitations unquestionably led the court astray.

Historically, consideration of R. 4:50-1 has resounded with assurances of a purpose of equity and justice, at least with respect to judgments and orders of the court. Greenberg v. Owens , 31 N.J. 402 (1960). The rule has been said to be one with "boundaries * * * as expansive as the need to achieve equity and justice." Court Invest. Co. v. Perillo , 48 N.J. 334, 341 (1966). With regard to the vacation of default judgments, for instance, "our courts have held that great liberality should be allowed," Foster v. New Albany Machine & Tool Co. , 63 N.J. ...

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